R. v. McCraw, [1991] 3 S.C.R. 72
Stephen Joseph McCraw Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. McCraw
File No.: 21684.
1991: June 4; 1991: September 26.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Cory, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Threats ‑‑ Rape threat ‑‑ Accused writing letters to football cheerleaders threatening to have sexual intercourse with them even if he had to rape them ‑‑ Whether letters contained a threat to cause serious bodily harm ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 264.1(1)(a).
The accused was charged with three counts of threatening to cause serious bodily harm contrary to s. 264.1(1)(a) of the Criminal Code. He had written anonymous letters to three football cheerleaders graphically detailing various sexual acts which he wished to perform upon them and concluded each with a threat that he would have sexual intercourse with them "even if I have to rape you". At trial, the three complainants testified that the letters frightened them to the extent that they no longer felt safe when they were alone. The trial judge found that the threat of rape did not constitute a threat to cause serious bodily harm and acquitted the accused. The majority of the Court of Appeal reversed the judgment and entered a conviction on the three counts.
Held: The appeal should be dismissed.
The trial judge erred in concluding that the threat to rape contained in the letters did not constitute a threat to cause serious bodily harm. For the purposes of s. 264.1(1)(a) of the Code, "serious bodily harm" means any hurt or injury, whether physical or psychological, that interferes in a substantial way with the integrity, health or well‑being of a victim. To determine whether spoken or written words constitute a threat to cause serious bodily harm ‑‑ an issue of law and not of fact ‑‑ they must be looked at in the context in which they were spoken or written, in light of the person to whom they were addressed and the circumstances in which they were uttered. They should be viewed in an objective way and the meaning attributed to the words should be that which a reasonable person would give to them. A threat to rape may, depending on the context and circumstances, constitute a threat to cause serious bodily harm. Rape is an act of violence, not just a sexual act. It is a crime that is likely to have serious psychological consequences and may, as well, have serious physical effects.
In the present case, the rape threat made by the accused contravenes s. 264.1(1)(a) of the Code. In the context of all the words written and having regard to the person to whom they were directed, there is no doubt that the questioned words would convey a threat of serious bodily harm to a reasonable person. The words used to express the threat were clear and the letters as a whole could have no other meaning than that these three young women would be subjected to rape -- forcible sexual penetration without consent through the use of violence or threats of violence. The evidence of the complainants coupled with a review of the words of the letter inevitably led to the conclusion that the accused had knowingly uttered a threat to cause the complainants serious bodily harm.
Cases Cited
Referred to: R. v. Nabis, [1975] 2 S.C.R. 485; R. v. LeBlanc, [1989] 1 S.C.R. 1583; R. v. Billam (1986), 8 Cr. App. R.(S.) 48.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, s. 243.4(1)(a) [en. 1985, c. 19, s. 39].
Criminal Code, R.S.C., 1985, c. C‑46, ss. 264.1(1)(a) [en. c. 27 (1st Supp.), s. 38], 267(2), 268, 273, 752.
Authors Cited
Burgess, Ann Wolbert. "Rape Trauma Syndrome" (1983), 1:3 Behavioral Sciences and the Law 97.
Giacopassi, David J. and Karen R. Wilkinson. "Rape and the Devalued Victim" (1985), 9 Law and Human Behavior 367.
Herd, Charles H. "Criminal Law: Kansas Recognizes Rape Trauma Syndrome" (1985), 24 Washburn L.J. 653.
Mahoney, Kathleen. "R. v. McCraw: Rape Fantasies v. Fear of Sexual Assault" (1989), 21 Ottawa L. Rev. 207.
Marshall, Patricia. "Sexual Assault, The Charter and Sentencing Reform" (1988), 63 C.R. (3d) 216.
Shorter Oxford English Dictionary, 3rd ed. Oxford: Clarendon Press, 1987, "serious", "rape".
APPEAL from a judgment of the Ontario Court of Appeal (1989), 51 C.C.C. (3d) 239, 35 O.A.C. 144, 72 C.R. (3d) 373, allowing the Crown's appeal from the accused's acquittal on charges of threatening serious bodily harm contrary to s. 264.1(1)(a) of the Criminal Code. Appeal dismissed.
Donald B. Bayne, for the appellant.
Carol Brewer and Rosella M. Cornaviera, for the respondent.
//Cory J.//
The judgment of the Court was delivered by
Cory J. -- The appellant wrote anonymous letters to three young women. In those letters he graphically detailed various sexual acts which he wished to perform with them and concluded by stating that he was going to have sexual intercourse with them even if he had to rape them. At issue is whether the letters amounted to a threat to cause serious bodily harm contrary to the provisions of s. 243.4(1)(a), now s. 264.1(1)(a) of the Criminal Code, R.S.C., 1985 c. C-46.
Factual Background
The appellant McCraw was known to follow the Ottawa Rough Rider Cheerleaders and had been seen at their practices. In the Fall of 1987 he phoned some of the cheerleaders using an assumed name and asked them to pose for photographs. During the same period he sent anonymous letters to three of the cheerleaders. In the letters he described sexual acts he intended to perform upon them. He concluded each letter with a threat that he would have sexual intercourse with them "even if I have to rape you" and even if it took until the day he died.
Each letter was personally addressed to one of the three cheerleaders. The letters are so similar that it is sufficient for the purposes of these reasons to set out the contents of one of them:
Sandy
Let me tell you, your [sic] a beautiful woman, I am disapointed [sic] you wernt [sic] in the calendar, you are the most beautiful cheerleader on the squad. I think you should pose nude for playboy. Every time I see you I get an instant erection. I masturbate thinking about you every night. Fucking you would be like a dream come true. I would lick your whole body, starting with your toes, up your legs, then right to your vagina. I would love to taste your juicy vagina. Then I would suck on your perfect, well shaped breasts, I would then turn you over and lick your asshole. Then you would go down and suck my dick. Once I am nice and horny, I would stick my dick in your vagina. Then I would shove my dick into your nice tight asshole. Then you would suck my dick, and I would shoot my sperm all over your face. I am going to fuck you even if I have to rape you. Even if it takes me till the day I die. There should be more beautiful woman [sic] around like you.
See you later and have a nice day!
(Emphasis in original.)
One of the victims received a second letter in the same envelope. In that letter she was told to meet McCraw at a specified time behind the National Arts Centre in Ottawa. The appellant warned the victim that "IF YOU DON'T SHOW UP I WILL GO TO ROCKLAND [her home] AND GET YOU, DON'T FORGET I KNOW WHERE YOU LIVE" (emphasis in original). A list of the Cheerleaders' names and telephone numbers including those of the victims was found in the appellant's possession upon his arrest.
At trial the three recipients of the letters testified. All gave evidence that the threatening letters frightened them to the extent that they no longer felt safe when they were alone. One stated that as a result of receiving the letter she took greater precautions when she went out and had someone with her at all times. She also ensured that no one at her place of work would give out any information about her. Another stated that the letters scared her and that she took steps to always have someone with her wherever she went. The third stated that she became more anxious about going out alone and more cautious about where she went. None of these witnesses were cross-examined. The appellant did not testify and no evidence was called on his behalf.
The Charges and the Relevant Section
The appellant was tried on the following three charges:
1. THAT HE THE SAID STEPHEN JOSEPH McCRAW, between the 1st day of November, 1987 and the 26th day of November, 1987, at the City of Ottawa in the said Judicial District, did knowingly cause to be received a threat to Sandy Kobluk, by letter, to cause serious bodily harm to Sandy Kobluk, contrary to Section 243.4(2) of the Criminal Code of Canada.
2. AND FURTHER, THAT HE THE SAID STEPHEN JOSEPH McCRAW, between the 1st day of November, 1987 and the 26th day of November, 1987, at the City of Ottawa in the said Judicial District, did knowingly cause to be received a threat to Johanne Robillard, by letter, to cause serious bodily harm to Johanne Robillard, contrary to Section 243.4(2) of the Criminal Code of Canada.
3. AND FURTHER, THAT HE THE SAID STEPHEN JOSEPH McCRAW, between the 1st day of October, 1987 and the 30th day of October, 1987, at the City of Ottawa in the said Judicial District, did knowingly cause to be received a threat to Deborah Burgoyn, by letter, to cause serious bodily harm to Deborah Burgoyn, contrary to Section 243.4(2) of the Criminal Code of Canada.
Section 264.1(1), then 243.4(1), the definition section of the offences charged, reads as follows:
264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or serious bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, poison or injure an animal or bird that is the property of any person.
The Courts Below
Trial Judge
The trial judge found as a fact that the statement contained in each letter "even if I have to rape you" constituted a threat of rape and was perceived by the complainants as a threat to rape them. However in his view the central issue was whether the threat to rape constituted a threat to cause serious bodily harm to the complainants. He stated that the court should focus on the plain meaning of the actual words used and should not speculate upon what the accused might have meant. In this regard the trial judge stated:
The tenor of the letters, while immature and disgusting, reveal [sic] more of an adoring fantasy than a threat to cause serious bodily harm.
((1989), 21 Ottawa L. Rev. 201, at p. 203.)
He rejected the Crown's argument that rape necessarily involves physical, emotional or psychological harm amounting to serious bodily harm. He put his position in this way (at p. 203):
In this case, the threat to "rape", to have non-consensual sexual intercourse may or may not involve serious bodily harm. It does not involve it necessarily. . . . Just as the words in Gingras [(1986), 16 W.C.B. 399 (Ont. Dist. Ct.)] are ambiguous and do not expressly or by necessary implication refer to causing serious bodily harm, so too the word "rape" in the case at bar is ambiguous and does not expressly or by necessary implication refer to the causing of serious bodily harm.
He emphasized his conclusion in the following manner at p. 204:
Rape or sexual assault does not of itself necessarily involve any kind of physical harm to the victim. . . .
In this case, we are dealing with "serious bodily harm" which is equated in the section to "death". What we have here is a threat to have sexual intercourse with each of the complainants, with or without their consent. This is quite separate and distinct, in the Court's view, to threatening serious bodily harm. Again, the threat to commit a sexual assault does not necessarily cause serious bodily harm.
The Ontario Court of Appeal
Brooke J.A., Tarnopolsky J.A. concurring, disagreed with the trial judge's conclusion that the threat of rape did not involve serious bodily harm. In his view, the threatened acts contravened the section. He wrote:
The word "serious" is not ambiguous and should be given its ordinary meaning.... Putting aside any question of whether bodily harm includes emotional or psychological harm, does the threat in this case amount to a threat to cause serious bodily harm? In my opinion, it does. The object of this threat is to create fear of such a degree of bodily harm from the application of physical force that the complainant will submit or not resist the sexual assault. The nature of bodily harm which would cause her to submit to such violations of her dignity and her body is not simply a hurt or injury that would interfere with her comfort but rather something serious. In short, resistance means force, perhaps violence, and serious injury. . . .
((1989), 51 C.C.C. (3d) 239, at p. 243.)
Brooke J.A. concluded that the trial judge had erred in his interpretation of the words "serious bodily harm" as they appear in s. 264.1(1)(a) when he held that the threat to commit rape was no more than a threat to have sexual intercourse without the complainant's consent.
However, the dissent found that the letters were simply obscene and did not contain a threat to rape. Accordingly, the letters did not "constitute threats to commit a specific criminal act" (p. 244). As a result, it was unnecessary to consider whether a threat to rape is a threat to cause serious bodily harm. The dissent agreed with the trial judge that "[t]he tenor of the letters, while immature and disgusting, reveal [sic] more of an adoring fantasy than a threat to cause serious bodily harm". Since, the dissenting judge concluded, the trial judge had found as a fact that the appellant did not intend the letters to be taken seriously, no offence could have been committed under s. 264.1(1). Alternatively, the dissent held (at p. 248):
Even if I am wrong in concluding that the trial judge found as a matter of fact that the letters were not intended to be taken seriously, I certainly accept that the language of the letters, while clearly criminal in that it is obscene, is ambiguous as a threat to cause serious bodily harm.
The Sole Question to be Resolved
The trial judge found and the appellant conceded that the words "I am going to fuck you even if I have to rape you" constitute a threat. Thus the only question to be resolved is whether the words constitute a threat to cause serious bodily harm for the purposes of s. 264.1(1)(a) of the Code.
The Meaning of "Serious Bodily Harm" in Section 264.1(1)(a)
Prior to 1985 the Criminal Code prohibited threats made by "letter, telegram, telephone, cable, radio, or otherwise" to cause "death or injury" to any person. The offence was aimed at the prohibition of written threats which were viewed as creating greater fear in the recipient than oral threats. In R. v. Nabis, [1975] 2 S.C.R. 485, this Court interpreted the words "or otherwise", holding that they were not broad enough to include oral threats of death or injury. It followed that oral threats made face to face, no matter how serious, were not prohibited.
In 1985, Parliament took steps to amend the section and to fill the void created by the decision in R. v. Nabis. It replaced the existing section with s. 243.4(1)(a) now 264.1(1)(a). The present section was expanded to include threats made "in any manner" to cause death or "serious bodily harm". The amendment had the effect of including oral threats made to the recipient but as well increased the required threshold of harm from "death or injury" to "death or serious bodily harm". At the same time the offence of uttering threats was moved to that portion of the Criminal Code dealing with offences against the person.
With that background in mind it is now appropriate to consider what meaning should be given to the words "serious bodily harm".
The appellant urged that serious bodily harm is ejusdem generis with death. I cannot accept that contention. The principle of ejusdem generis has no application to this case. It is well settled that words contained in a statute are to be given their ordinary meaning. Other principles of statutory interpretation only come into play where the words sought to be defined are ambiguous. The words "serious bodily harm" are not in any way ambiguous.
It is true that the phrase is not defined in the Code. However "bodily harm" is defined in s. 267(2). That definition is as follows:
For the purposes of this section [assault with a weapon or causing bodily harm] and sections 269 [unlawfully causing bodily harm] and 272 [sexual assault with a weapon, threats to a third party or causing bodily harm], "bodily harm" means any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature.
That definition of "bodily harm" can I think be properly applied to those words as they appear in s. 264.1(1)(a).
There remains the question then of how the word "serious" ought to be defined. The Shorter Oxford English Dictionary (3rd ed. 1987) provides the following definition of "serious":
Serious . . . Weighty, important, grave; (of quantity or degree) considerable. b. Attended with danger; giving cause for anxiety.
Giving the word "serious" its appropriate dictionary meaning, I would interpret "serious bodily harm" as being any hurt or injury that interferes in a grave or substantial way with the physical integrity or well-being of the complainant. Thus "serious bodily harm" does not require proof of the same degree of harm required for aggravated assault described in s. 268 of the Code; that is to say the wounding, disfiguring or endangering of the life of the complainant. Yet it requires greater harm than the mere "bodily harm" described in s. 267; that is hurt or injury that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature.
Does the phrase encompass psychological harm? I think that it must. The term "bodily harm" referred to in s. 267 is defined as "any hurt or injury". Those words are clearly broad enough to include psychological harm. Since s. 264.1 refers to any "serious" hurt or injury then any serious or substantial psychological harm must come within its purview. So long as the psychological harm substantially interferes with the health or well-being of the complainant, it properly comes within the scope of the phrase "serious bodily harm". There can be no doubt that psychological harm may often be more pervasive and permanent in its effect than any physical harm. I can see no principle of interpretation nor any policy reason for excluding psychological harm from the scope of s. 264.1(1)(a) of the Code.
In summary the meaning of "serious bodily harm" for the purposes of the section is any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant. With that definition of the phrase in mind, it is now appropriate to review the approach to be taken when a court is considering whether the questioned words constitute a threat of serious bodily harm. As a first step some consideration should be given to the aim and purpose of s. 264.1(1)(a).
The Aim of Section 264.1(1)(a)
Parliament, in creating this offence recognized that the act of threatening permits a person uttering the threat to use intimidation in order to achieve his or her objects. The threat need not be carried out; the offence is completed when the threat is made. It is designed to facilitate the achievement of the goal sought by the issuer of the threat. A threat is a tool of intimidation which is designed to instill a sense of fear in its recipient. The aim and purpose of the offence is to protect against fear and intimidation. In enacting the section Parliament was moving to protect personal freedom of choice and action, a matter of fundamental importance to members of a democratic society.
The true nature of the offence was recognized by this Court in R. v. LeBlanc, [1989] 1 S.C.R. 1583. There the Court approved the trial judge's ruling that whether the threatener intends to carry out the threat is irrelevant to determining if a conviction can be maintained. It is the element of fear instilled in the victim by the issuer of the threat at which the criminal sanction is aimed. Section 264.1 provides that the threat must be knowingly uttered or conveyed by the accused. Thus the Crown is required to establish that the accused intended to threaten the victim with serious bodily harm. However the determination as to whether there was such a subjective intent will often have to be based to a large extent upon a consideration of the words used by the accused. In those cases where the accused does not testify or call evidence the determination must be made on the basis of the words used. But if, for example, evidence was led that the accused simply copied words that he did not understand on the direction of another different considerations would apply. The next step is a consideration of the questioned words.
The Approach That Should be Taken to Determine if Words Contravene Section 264.1(1)(a)
At the outset I should state that in my view the decision as to whether the written or spoken words in question constitutes a threat to cause serious bodily harm is an issue of law and not of fact. How then should a court approach the issue? The structure and wording of s. 264.1(1)(a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person. The words which are said to constitute a threat must be looked at in light of various factors. They must be considered objectively and within the context of all the written words or conversation in which they occurred. As well, some thought must be given to the situation of the recipient of the threat.
The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?
Does the Threat to Rape Contained in These Letters Demonstrate an Intent to Inflict Serious Bodily Harm?
A) Generally
Let us consider a threat to rape in general terms, without reference to the specific language of the letters. Violence is inherent in the act of rape. The element of sexuality aggravates the physical interference caused by an assault. Sexual assault results in a greater impact on the victim than a non-sexual assault. This has been reflected in the penalty provisions for sexual assault which are significantly higher than for non-sexual assault offences. In addition, this is emphasized by the fact that the definition of a "serious personal injury offence" in s. 752 of the Code includes the commission of sexual assault or an attempt to commit that offence. Thus Parliament has recognized the gravity of sexual assault.
It seems to me that to argue that a woman who has been forced to have sexual intercourse has not necessarily suffered grave and serious violence is to ignore the perspective of women. For women rape under any circumstance must constitute a profound interference with their physical integrity. As well, by force or threat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of those relations. These are choices of great importance that may have a substantial effect upon the life and health of every woman. Parliament's intention in replacing the rape laws with the sexual assault offences was to convey the message that rape is not just a sexual act but is basically an act of violence. See K. Mahoney, "R. v. McCraw: Rape Fantasies v. Fear of Sexual Assault" (1989), 21 Ottawa L. Rev. 207, at pp. 215-16.
It is difficult if not impossible to distinguish the sexual component of the act of rape from the context of violence in which it occurs. Rape throughout the ages has been synonymous with an act of forcibly imposing the will of the more powerful assailant upon the weaker victim. Necessarily implied in the act of rape is the imposition of the assailant's will on the victim through the use of force. Whether the victim is so overcome by fear that she submits or whether she struggles violently is of no consequence in determining whether the rape has actually been committed. In both situations the victim has been forced to undergo the ultimate violation of personal privacy by unwanted sexual intercourse. The assailant has imposed his will on the victim by means of actual violence or the threat of violence.
Violence and the threat of serious bodily harm are indeed the hallmarks of rape. While the bruises and physical results of the violent act will often disappear over time, the devastating psychological effects may last a lifetime. It seems to me that grave psychological harm could certainly result from an act of rape.
The psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact. See D. J. Giacopassi and K. R. Wilkinson, "Rape and the Devalued Victim" (1985), 9 Law and Human Behavior 367; R. v. Billam (1986), 8 Cr. App. R.(S.) 48 (C.A.), at pp. 49-50; P. Marshall, "Sexual Assault, The Charter and Sentencing Reform" (1988), 63 C.R. (3d) 216, at p. 221; A. W. Burgess, "Rape Trauma Syndrome" (1983), 1:3 Behavioral Sciences and the Law 97; C. H. Herd, "Criminal Law: Kansas Recognizes Rape Trauma Syndrome" (1985), 24 Washburn L.J. 653. To ignore the fact that rape frequently results in serious psychological harm to the victim would be a retrograde step, contrary to any concept of sensitivity in the application of the law.
In my view there can be no conclusion other than that rape can cause serious bodily harm. It follows that the threat to rape may well, depending on the context and circumstances, constitute a threat to commit serious bodily harm contrary to the provisions of s. 264.1(1)(a) of the Code. Indeed it would be ludicrous and contrary to the purpose of s. 264.1 to interpret the section as criminalizing the threat to damage a piece of property or a pet while permitting a threat to rape a woman on the grounds that it did not constitute a threat to commit serious bodily harm.
B) The Words Used to Express the Threat
In this case quite apart from the effect of the letters as a whole the words set out earlier "I am going to fuck you even if I have to rape you" constitute a threat of serious bodily harm. The letters are addressed to young women. The threat is to have sexual intercourse with the woman to whom the letter is addressed or as underlined in the letter to rape her. How would that wonderful fictitious legal character the ordinary reasonable person understand the word rape, bearing in mind that at least 50 percent of the ordinary reasonable people in our society are women? The Shorter Oxford English Dictionary defines rape as the "[v]iolation or ravishing of a woman". Rape is non-consensual sexual intercourse. It is the violation of the bodily integrity of a woman. It is hard to imagine a greater affront to human dignity. As noted earlier, rape is a crime that is likely to have serious psychological consequences and may, as well, have serious physical effects. Surely to every fair minded woman and man the threat of rape constitutes a threat of serious bodily harm. Neither the one uttering or writing the threat to rape nor the person to whom it is directed could have any doubt as to the meaning of the word rape.
The appellant argues that the threat to rape is no more than a threat to have non-consensual sexual intercourse and not a threat to cause serious bodily harm. It is argued that non-consensual sexual intercourse may or may not involve death or serious bodily harm depending upon the varying circumstances of each incident of rape and of each victim. It is said that the Criminal Code provides for a separate offence when a sexual assailant carries, uses or threatens to use a weapon or causes bodily harm to the complainant (s. 267). It is a separate offence when the sexual assailant wounds, maims, disfigures or endangers the life of the complainant (s. 273). It is then argued that when the letters were received in 1987 the expressed rape threat constituted a threat to do no more than commit sexual assault simpliciter and could not refer to the other two sections of the Code which refer to actual or threatened violence.
I cannot accept this argument. The particular legal classification of the assailant's threatened act should it be carried out, is completely irrelevant to the determination of whether the words in question constitute a threat to cause serious bodily harm. We are not, for the purposes of s. 264.1(1)(a) concerned with the legal definition of rape. In determining whether the letters contained a threat to cause serious bodily harm the term rape must be construed as it would be by the average reasonable person.
People outside the legal profession simply do not communicate to each other in the language of the Criminal Code. It would be a rare case indeed if an assailant would threaten his victim in words such as "Madam, if you don't comply with my requests, I'm going to sexually assault you and cause you bodily harm" or "I'm going to commit aggravated sexual assault upon you". It is equally unlikely that a threat would refer to the specific circumstances which must exist in law for those offences to be made out.
In reality neither the man issuing the threat nor the woman to whom it is directed are concerned with legal definitions. Here the appellant threatened rape. Neither he nor any of the young women could have had any doubt as to what the word meant. It would be understood to mean sexual penetration without consent achieved by means of violence or threats of violence. The fact that the term rape is no longer used in the present Criminal Code is of no consequence. It does not alter the essential nature of the understanding of the word rape to the ordinary reasonable person. Nor does it affect the nature of the threat implied by the use of that word.
C) Looking at the Letters as a Whole
Looking at the letters as a whole strengthens and emphasizes that there was a threat to inflict serious bodily harm on the three victims. The words "I am going to fuck you even if I have to rape you" are found towards the end of a letter written to young women graphically describing various sexual acts the appellant intended to perform. The clear inference was that rape would be the means of enforcing compliance with the depicted sexual activity. This was not juvenile, puerile sexual fantasizing, it was a threat of grave violence intended to enforce compliance. The words used are not ambiguous; rather they are explicit and clear. Taken in the context of the letter, they threaten serious bodily harm emphasized by the use of the underlined word rape. The letters could have no other meaning than that these three women would be subjected to forcible sexual penetration without consent through the use of violence. The purpose of the threat was to create a fear of such a degree of bodily harm from the application of force that the victims would not resist the sexual acts of the appellant. There could be no conclusion drawn by the victims other than that they would be subjected to violence should they resist the appellant.
In this case it was appropriate to consider the evidence of the complainants as to the effect of the letters upon them as an aid determining what the words would mean to a reasonable person.
These young women were forced to live with the threat of being sexually assaulted and to carry out their activities with the knowledge that they were being stalked by the appellant. No reasonable person looking at the letters could come to any other conclusion than that they constituted a threat to cause serious bodily harm. The threat resulted in the restriction of life style, of movement and of choice of action that the section was designed to alleviate. This is the very type of threat that s. 264.1(1)(a) was designed to combat. The evidence of the complainants coupled with a review of the words of the letter would inevitably lead to the conclusion that the accused had knowingly uttered a threat to cause the complainants serious bodily harm. The facts of this case required a conviction on the three charges.
Summary
For the purposes of s. 264.1(1)(a) of the Criminal Code "serious bodily harm" means any hurt or injury, whether physical or psychological, that interferes in a substantial way with the integrity, health or well-being of a victim. To determine whether spoken or written words constitute a threat to cause serious bodily harm they must be looked at in the context in which they were spoken or written, in light of the person to whom they were addressed and the circumstances in which they were uttered. They should be viewed in an objective way and the meaning attributed to the words should be that which a reasonable person would give to them. A threat to rape in and of itself considered in light of the context of the written words or conversation in which the threat was made and of the person to whom the words were addressed may constitute a threat to cause serious bodily harm. In this case the threats contained in the letters constitute a threat to cause serious bodily harm.
Disposition
In the result I would dismiss the appeal and affirm the decision of the majority of the Court of Appeal.
Appeal dismissed.
Solicitors for the appellant: Bayne, Sellar, Boxall, Ottawa.
Solicitor for the respondent: The Ministry of the Attorney General, Toronto.